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PORT STATE ENFORCEMENT

SCOPE OF APPLICATION: The ever-recurrent issue of the final outcome of this Conference surfaced once more when some delegates questioned whether port State enforcement should be specific to regional organizations' arrangements or should be enshrined in a document applicable at the global level. As a proponent of the legally-binding document approach put it, the global approach can be seen as a safety net in case the application of the measures fails at the regional level. Another delegate asked that there be no safe refuge for vessels violating the conservation and management measures agreed upon. Some parties agreed to the principle only in so far as it would be applied through the regional organizations and not at the global level.

PORT STATE JURISDICTION: This issue was characterized by one of the delegates as similar to most of the questions debated during this Conference: participants may agree on the principle but dissent on its application. The principle itself was questioned by one delegate who first claimed that it was not recognized in UNCLOS, customary international law or customs of international maritime law. After another delegate pointed out that Article 218 of UNCLOS provides precisely for port State enforcement in cases of violation of marine pollution conventions, the first delegate claimed that, in any event, UNCLOS has yet to enter into force and should thus give way to customary international law which has not yet elevated port State enforcement to the status of a general principle. This last assertion was questioned by some.

PORT STATE ENFORCEMENT -- A RIGHT OR A DUTY: With regard to the provisions of the Chair's draft paper, the majority of States argued that port State jurisdiction is no longer questioned and, therefore, need not be mentioned further. As a result, verbs such as "may" need to be replaced by "should" or even "shall" to emphasize the point that in fulfilling their obligation to conserve and manage the straddling and highly migratory fish stocks, the port States are required to exercise some control over the foreign vessels that call in their ports. In particular, it was argued that application of conservation measures should not be left to the good will of the port States.

With regard to the enforcement by port States at the request of another State, several delegates expressed the view that this should remain a right and not a duty since the port State and the requesting State may have conflicting interests. It was also suggested that "Parties" rather than States be allowed to ask for port State cooperation.

MEASURES THAT THE PORT STATE MAY/SHOULD CARRY OUT:

  • The right to request information from flag States was not disputed and some delegates attached to it a collateral obligation on the part of the flag State to provide this information.
  • It was agreed that inspection of vessels suspected of violating the prescribed measures should be limited to cases where the port State has reason to suspect that the vessel's fishing practices undermine the conservation measures adopted. All agreed it is impossible to inspect all the vessels that call in but, as FAO pointed out, the simple examination of the fishing log may give good indications on the legality of the fishing. Some developing nations questioned their own capacity to carry out such inspections and suggested that on-board inspection schemes be set up to help them in this task. Others called for transfers of technology, such as satellite tracking devices, to enhance cooperation between flag State and port State. This was also seen as a way to avoid the possible partiality of on-board inspectors. If a distant water fishing vessel also fishes in the coastal area, chances are that the port State may be prejudiced against it. The concept of "undermining" practices was also questioned as being too vague and including an element of intention.
  • Detainment of vessels that have violated the conservation and management measures raised the question of how long a vessel could be detained -- until the flag State has been notified or until the port State is satisfied that the proper measures have been taken by the flag State. The principle of proportionality, which should be applied to this situation, needs to be further refined.
  • Refusing entry to vessels that are known to have violated conservation and management measures as well as the blacklisting of offending vessels has been applied in practice and has met with some success.
  • Refusing to land catches that were harvested in violation of the conservation and management measures caused some worry that this measure would be in violation of GATT provisions. It was explained, however, that GATT does not apply to direct imports from the high seas.
  • Hailing is a practice that has been successful in the past and was recommended for inclusion in this section.
  • Confiscation of vessels or fishing gear was suggested in the case of the most serious violations.
A minor incident occurred when one delegate renewed claim of jurisdiction over the Kuril Islands. The other nation, which claims sovereignty over the same islands, regretted the intervention, claiming it contradicted the mandate of this Conference.

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